THIS DOCUMENT IS A COPY OF THE FORM S-3 FILED ON JULY 26, 1996 PURSUANT TO
A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
As filed with the Securities and Exchange Commission on July 26, 1996
Registration No. 33-35336
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM S-3
REGISTRATION STATEMENT
Under The Securities Act of 1933
____________
THE PEAK TECHNOLOGIES GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3028807
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
600 Madison Avenue
New York, New York 10022
(212) 832-2833
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Nicholas R.H. Toms
Chairman and Chief Executive Officer
The Peak Technologies Group, Inc.
600 Madison Avenue
New York, New York 10022
(212) 832-2833
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
John T. O'Connor, Esq.
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
(212) 530-5000
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of the Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. _
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. _
CALCULATION OF REGISTRATION FEE
Amount Proposed Proposed Amount of
Title of to be Maximum Maximum Registration
Shares Registered Aggregate Aggregate Fee
to be Registered Price Offering
Per Unit(1) Price(1)
Common Stock,
$.01 Par Value224,727 $20.00 $4,494,540 $1,550.00
shs.
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) based on the average of the high and low prices
for the Company's Common Stock reported on the NASDAQ National Market
on July 22, 1996.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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M&A\42777_3
PROSPECTUS
SUBJECT TO COMPLETION, DATED JULY 26, 1996
THE PEAK TECHNOLOGIES GROUP, INC.
224,727 SHARES
COMMON STOCK
____________________
The 224,727 shares of THE PEAK TECHNOLOGIES GROUP, INC.
(the "Company") Common Stock, par value $.01 per share (the
"Common Stock"), offered hereby are being offered for sale by the
holders of the Common Stock named herein under the heading
"Selling Stockholders" (the "Selling Stockholders"). The
outstanding Common Stock of the Company, including the Common
Stock offered hereby, is listed on the NASDAQ National Market
("NASDAQ"). On July 24, 1996, the last reported sale price of
the Common Stock on NASDAQ was $1911/16 per share.
The Company will not receive any of the proceeds from
the sale of the Common Stock offered hereby. Any or all of the
Common Stock covered by this Prospectus may be sold, from time to
time, only by means of ordinary brokerage transactions. See
"Plan of Distribution."
______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_____________
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of any offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would
be unlawful prior to registration or qualification under the securities laws
of any such State.
M&A\42777_3
_______________
The date of this Prospectus is July __, 1996
M&A\42777_3
The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith files reports,
proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at
the public reference facilities maintained by the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549 and at its regional office at 7 World Trade Center,
Suite 1300, New York, New York 10048. Copies of such materials
can be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, on
payment of prescribed charges. Such reports, proxy statements
and other information concerning the Company can also be
inspected at the offices of NASDAQ.
The Company has filed with the Commission a
registration statement on Form S-3 (the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the shares of Common Stock offered hereby.
This Prospectus does not contain all the information set forth in
the Registration Statement, certain parts of which have been
omitted in accordance with the rules and regulations of the
Commission, and the exhibits relating thereto, which have been
filed with the Commission. Copies of the Registration Statement
and the exhibits are on file at the offices of the Commission and
may be obtained upon payment of the fees prescribed by the
Commission, or examined without charge at the public reference
facilities of the Commission described above.
____________________
No person is authorized in connection with the offering
made hereby to give any information or to make any representation
not contained or incorporated by reference in this Prospectus,
and any information or representation not contained or
incorporated herein must not be relied upon as having been
authorized by the Company, the Selling Stockholders set forth
under "Selling Stockholders" or any underwriter. This Prospectus
does not constitute an offer to sell or a solicitation of an
offer to buy by any person in any jurisdiction in which it is
unlawful for such person to make such an offer or solicitation.
Neither the delivery of this Prospectus at any time nor any sale
made hereunder shall under any circumstance imply that the
information herein is correct as of any date subsequent to the
date hereof.
The following documents filed by the Company with the
Commission pursuant to the Exchange Act are incorporated in this
Prospectus by reference:
(a) The Company's Annual Report on Form 10-K for the
M&A\42777_3
fiscal year ended December 31, 1995;
(b) The Company's Proxy Statement filed with the
Commission on May 1, 1996;
(c) The Company's Quarterly Report on Form 10-Q for
the quarterly period ended March 31, 1996; and
(d) The description of the Company's Common Stock
contained in the registration statement on Form 8-A filed
with the Commission on April 17, 1992.
All documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of this Prospectus and prior to the termination of this
offering shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing such
documents. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for
purposes of this Prospectus to the extent that a statement
contained herein, or in any other subsequently filed document
that also is incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will furnish, without charge, to any person
to whom a copy of this Prospectus is delivered, including any
beneficial owner, upon such person's written or oral request, a
copy of any and all of the information filed by the Company that
has been incorporated by reference in this Prospectus (not
including exhibits to the information that is incorporated by
reference herein unless such exhibits are specifically
incorporated by reference in such information). Requests for
such copies should be directed to the Company at 9200 Berger
Road, Columbia, MD 21046, Attention: Corporate Secretary
(telephone number 410-312-6002).
The Company is the largest systems integrator and full
service value added distributor of bar code based data capture
and wireless data communications systems. The Company focuses
principally on industrial applications, including warehousing,
manufacturing and distribution. The Company's customers are
principally end-users, typically large companies and government
agencies. The Company markets the products and systems of
approximately 50 manufacturers as well as its own proprietary
software products and systems. The Company also distributes
consumable supplies and accessories, as well as a broad line of
printing systems. In addition, the Company provides maintenance,
technical support and consulting services covering all of the
products and systems which the Company sells.
The Company was formed in February 1989 as Logon
Holdings, Inc. and changed its name in May 1991. The Company has
since expanded its business and product line through acquisitions
and internal development. The Company's principal executive
M&A\42777_3
offices are located at 600 Madison Avenue, New York, New York
10022, telephone number (212) 832-2833.
MERGERS AND ACQUISITIONS
ACQUIDATA ACQUISITION
On April 3, 1996, the Company acquired Acquidata S.A.,
a company organized under the laws of France ("Acquidata"), by
way of a stock purchase (the "Acquidata Acquisition") pursuant to
which the Acquidata Stockholders (as defined below) received
shares of Common Stock in exchange for their shares of stock of
Acquidata. In connection with the Acquidata Acquisition, on
April 3, 1996, the Company entered into a Registration Agreement
(the "Acquidata Registration Agreement") with Luc Pariente ("Mr.
Pariente"), Paul Antoine Merle ("Mr. Merle), Cesar Zorrilla ("Mr.
Zorrilla"), Frederic Migliaccio ("Mr. Migliaccio") and Frederic
Bouvard ("Mr. Bouvard", and together with Mr. Pariente, Mr.
Merle, Mr. Zorrilla and Mr. Migliaccio, the "Acquidata
Stockholders"). Pursuant to the Acquidata Registration
Agreement, the Company agreed to register for resale the shares
of Common Stock held by the Acquidata Stockholders. The
Acquidata Stockholders who are offering shares of Common Stock
pursuant to the Registration Statement of which this Prospectus
forms a part are referred to herein as the "Acquidata Selling
Stockholders."
BARCODE BC-SYSTEME ACQUISITION
On April 4, 1996, the Company acquired Barcode-BC
Systeme, a company organized under the laws of Switzerland
("Barcode"), by way of a stock purchase (the "Barcode
Acquisition") pursuant to which the Barcode Stockholders (as
defined below) received shares of Common Stock in exchange for
their shares of stock of Barcode. In connection with the Barcode
Acquisition, on April 4, 1996, the Company entered into a
Registration Agreement (the "Barcode Registration Agreement")
with Heinrich G. Merki ("Mr. Merki"), Willy Steiner ("Mr.
Steiner) and Mathias Waldesbuhl ("Mr. Waldesbuhl", and together
with Mr. Merki and Mr. Steiner, the "Barcode Stockholders").
Pursuant to the Barcode Registration Agreement, the Company
agreed to register for resale the shares of Common Stock held by
the Barcode Stockholders. The Barcode Stockholders who are
offering shares of Common Stock pursuant to the Registration
Statement of which this Prospectus forms a part are referred to
herein as the "Barcode Selling Stockholders."
The Acquidata Selling Stockholders and the Barcode Selling
Stockholders are sometimes collectively referred to herein as the
"Selling Stockholders."
SELLING STOCKHOLDERS
The Selling Stockholders have acquired the 224,727
shares of Common Stock offered hereby from the Company pursuant
to the above-referenced merger and acquisition transactions.
ACQUIDATA SELLING STOCKHOLDERS
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Pursuant to the Acquidata Registration Agreement, the
Company agreed to register the shares of Common Stock offered by
the Acquidata Selling Stockholders hereunder, and to use its best
efforts to maintain such registration statement in effect until
April 3, 1998. This Prospectus may not be used in connection
with the sale of any shares of Common Stock held by an Acquidata
Selling Stockholder at any time after April 3, 1998.
BARCODE SELLING STOCKHOLDERS
Pursuant to the Barcode Registration Agreement, the
Company agreed to register the shares of Common Stock offered by
the Barcode Selling Stockholders hereunder, and to use its best
efforts to maintain such registration statement in effect until
April 4, 1998. This Prospectus may not be used in connection
with the sale of any shares of Common Stock held by an Acquidata
Selling Stockholder at any time after April 4, 1998.
The following table sets forth certain information
regarding ownership of Common Stock by the Selling Stockholders.
Unless otherwise noted below, after the sale of all shares
offered hereby none of the Selling Stockholders will own in
excess of 1% of the Common Stock outstanding on the date hereof.
The Company may from time to time supplement or amend this
Prospectus, as required, to provide additional information with
respect to the Selling Stockholders.
M&A\42777_3
SELLING STOCKHOLDERS
Number of Shares of Number of Shares Number of Shares
Common Stock Owned of Common of Common Stock
Prior to the Offering Stock Being Offered Owned After Offering*
ACQUIDATA SELLING STOCKHOLDERS
Luc Pariente.........67,364[1] 67,364 0
Paul Antoine Merle...43,182[2] 43,182 0
Cesar Zorrilla.......38,000[3] 38,000 0
Frederic Migliaccio..13,818[4] 13,818 0
Frederic Bouvard.....10,363[5] 10,363 0
BARCODE SELLING STOCKHOLDERS
Henrich G. Merki ....36,400[6] 36,400 0
Willy Steiner........10,400[7] 10,400 0
Mathias Waldesbuhl... 5,200[8] 5,200 0
* Calculation of the number of shares of Common Stock assumes the sale of
all shares offered hereby. The total number of outstanding shares of Common
Stock at June 30, 1996 was 9,261,575. Based upon this number, and assuming
the sale of all shares of Common Stock offered hereby, each of the Selling
Stockholders will own less than 1% of the Common Stock after completion of
the offering.
[1] From October 27, 1992 to April 3, 1996, Mr. Pariente was Chairman of the
Board of Acquidata. Mr. Pariente has been the Deputy General Manager of
Acquidata since April 3, 1996.
[2] From September 1, 1995 to April 3, 1996, Mr. Merle was the General
Manager and a Director of Acquidata. Mr. Merle has been the Administrative
Manager of Acquidata since December 1, 1992.
[3] Mr. Zorrilla has been the Technical Manager of Acquidata since May 4, 1992.
[4] From October 7, 1991 to April 3, 1996, Mr. Migliaccio was the Products
Manager of Acquidata. Mr. Migliaccio has been the Services Manager of
Acquidata since April 3, 1996.
[5] From February 3, 1993 to April 3, 1996, Mr. Bouvard was a Director
of Acquidata. Mr. Bouvard has been a Sales Manager of Acquidata since
February 3, 1993.
[6] Mr. Merki has been the General Manager of Barcode since January 1,
1992.
[7] Mr. Steiner has been the Product Manager Scanning of Barcode since
January 1, 1992.
[8] Mr. Waldesbuhl has been the Product and Sales Master of Barcode
since May 1, 1992.
The Company will not receive any of the proceeds from the
sale by the Selling Stockholders of the Common Stock offered hereby.
Any distribution of shares of the Common Stock by the Selling
Stockholders hereunder may be effected from time to time only in one
or more "brokers' transactions," as defined in paragraphs (f) and (g)
of Rule 144 under the Securities Act, or in transactions directly with
a "market maker," as defined in Section 3(a)(38) of the Exchange Act,
at market prices prevailing at the time of sale. The outstanding
M&A\42777_3
Common Stock of the Company, including the Common Stock offered
hereby, is listed on NASDAQ.
Pursuant to applicable rules and regulations under the
Exchange Act, any person engaged in a distribution of the Common Stock
may not simultaneously engage in market making activities with respect
to the Common Stock for a period of nine business days prior to the
commencement of such distribution. In addition and without limiting
the foregoing, the Selling Stockholders and any person participating
in the distribution of the Common Stock contemplated hereby will be
subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including without limitation rules 10b-6 and
10b-7, which provisions may restrict the timing of purchases and sales
of the Common Stock by the Selling Stockholders or any such other
person.
Pursuant to the Acquidata Registration Agreement and the
Barcode Registration Agreement (collectively the "Registration
Agreements"), as applicable, the Company has agreed to indemnify the
Selling Stockholders and certain other persons against certain
liabilities, including liabilities arising under the Securities Act.
In order to comply with certain states' securities laws, if
applicable, the Common Stock will be sold in such jurisdictions only
through registered or licensed brokers or dealers. In certain states
the Common Stock may not be sold unless it has been registered or
qualified for sale in such state, or unless an exemption from
registration or qualification is available and complied with.
Pursuant to the Registration Agreements, the Company has
agreed to bear any and all costs, expenses and fees incident to the
registration of shares of Common Stock for sale under the Registration
Statement of which this Prospectus forms a part, including, among
other things, registration and filing fees, fees and expenses incurred
in connection with compliance with securities or blue sky laws of the
applicable states and fees and disbursements of counsel and
independent public accountants for the Company, but excluding the fees
and disbursements of counsel to the Selling Stockholders, broker fees
and transfer taxes, if any.
The legality of the issuance of the Common Stock offered
hereby will be passed upon for the Company by Milbank, Tweed, Hadley &
McCloy.
M&A\42777_3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
An itemized statement of the estimated amount of all expenses in
connection with the distribution of the securities registered hereby
is as follows:
Securities and Exchange Commission
registration fee $ 1,550
Legal Fees and expenses 10,000
NASDAQ Registration Fee 4,500
Accounting fees and expenses 5,000
Miscellaneous 3,000
Total $24,050
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware makes provisions for indemnification of officers and
directors in terms sufficiently broad to indemnify officers and
directors under certain circumstances for liabilities arising under
the Securities Act of 1933, as amended (the "Act"). The registrant's
Certificate of Incorporation limits the liability of the registrant's
directors, and the Registrant's Bylaws provide for the indemnification
of its directors, officers, employees and other agents as permitted
under Delaware law. In addition, the registrant has entered into
Indemnification Agreements with certain of its officers and its
directors, pursuant to which the Registrant has agreed to indemnify
them to the extent permitted under Delaware law.
Item 16. Exhibits
(a) Exhibits:
2.1 Agreement and Plan of Merger dated July 20, 1993 among
The Peak Technologies Group, Inc., Airbus Acquisition
Corp., Concord Technologies, Inc. and the Shareholders
named therein (filed as Exhibit 2.1 to the Company's
Form 10-Q for the quarter ended September 30, 1993).
2.2 Agreement and Plan of Merger dated July 12, 1994, among
Navy Acquisition Corp., Naco Data Systems, Inc., Vision
Data, Inc., Naco Electronics Corporation, Theodore
Leonard and Suzane Lenhard (filed as Exhibit 2.1 to the
Company's Form 10-Q for the quarter ended September 30,
1994)
2.3 Stock Purchase Agreement dated as of October 25, 1994,
by and among Jeffrey P. Thomas, The Small Self
Administered Pension Scheme known as the Thomas
Dependents Scheme, Fenchurch Nominees Ltd. and The Peak
Technologies Group, Inc. (filed as Exhibit 2.2 to the
Company's Form 10-K for the fiscal year ended December
31, 1994)
II- 1
2.4 Agreement and Plan of Merger dated as of January 6,
1995, among Tiger Acquisition Corp., The Peak
Technologies Group, Inc., Innovative Products and
Peripherals Corporation, Peter Dignan, Brent Felker,
Calvin Fidler, Ralph Hubregsen, James Lemmer, Timothy
Martin, Marcia Rivedal, Steven Sager, Stacey Strole,
Dale Trimble, Dawn Ungerman, Tracy Van Vleet, Ray
Villeneuve and Eric White. (filed as Exhibit 2.1 to the
Company's Current Report on Form 8-K filed with the
Commission on January 12, 1995).
2.5 Stock Purchase Agreement dated as of September 25,
1995, by and among Ian Parker, Anders Lundgren and The
Peak Technologies Group, Inc. (filed as Exhibit 2.5 to
the Company's Registration Statement on Form S-3, File
No. 33-80963).
2.6 Agreement and Plan of Merger dated as of September 30,
1995, among Alpha II Acquisition Corp., The Peak
Technologies Group, Inc., AccuScan, Inc., Robert Travis
Collins, David R. Wiedman, David C. Johnson, Eric G.
Blumthal, Jeffrey Stuart Collins, Anthony R. Thompson,
Reggie P. Johnson, Alton C. Smith, III, Walter Max
Fuqua, Jeffrey C. Osborne, Jay A. Steinmetz and Timothy
J. Derrickson. (filed as Exhibit 2.4 to the Company's
Registration Statement on Form S-3, File No. 33-80963).
2.7 Asset Purchase Agreement dated as of October 20, 1995
by and among Dytec, Inc., Gregory R. Schmidt, Gregory
P. Floyd, Port Acquisition Corp. and The Peak
Technologies Group, Inc. (filed as Exhibit 2.1 to the
Company's Current Report on Form 8-K filed with the
Commission on December 21, 1995, as amended).
4.1 Registration Agreement dated July 20, 1993, among The
Peak Technologies Group, Inc., Scott Arnold, Donald
Way, Raymond England, Michael Ross, Stephen Fowler and
Michael Renaud (filed as Exhibit 2.3 to the Company's
Form 10-Q for the quarter ended September 30, 1993).
4.2 Registration Agreement dated as of October 25, 1994,
among The Peak Technologies Group, Inc., Jeffrey P.
Thomas, The Small Self Administered Pension Scheme
known as the Thomas Dependents Scheme and Fenchurch
Nominees Ltd. (filed as Exhibit 4.3 to the Company's
Form 10-K for the fiscal year ended December 31, 1994)
4.3 Registration Agreement dated January 6, 1995, among The
Peak Technologies, Inc., Peter Dignan, Brent Felker,
Calvin Fidler, Ralph Hubregsen, James Lemmer, Timothy
Martin, Marcia Rivedal, Steven Sager, Stacey Strole,
Dale Trimble, Dawn Ungerman, Tracy Van Vleet, Ray
Villeneuve and Eric White. (filed as Exhibit 4.1 to
the Company's Current Report on Form 8-K filed with the
Commission on January 12, 1995).
4.4 Registration Agreement dated September 30, 1995, among
The Peak Technologies Group, Inc., Robert Travis
Collins, David R. Wiedman, David C. Johnson, Eric G.
II- 2
Blumthal, Jeffrey Stuart Collins, Anthony R. Thompson,
Reggie P. Johnson, Alton C. Smith, III, Walter Max
Fuqua, Jeffrey C. Osborne, Jay A. Steinmetz and Timothy
J. Derrickson. (filed as Exhibit 4.4 to the Company's
Registration Statement on Form S-3, File No. 33-80963).
4.5 Registration Agreement dated as of October 16, 1995,
among The Peak Technologies Group, Inc., Ian Parker and
Anders Lundgren. (filed as Exhibit 4.5 to the
Company's Registration Statement on Form S-3, File No.
33-80963).
4.6 Registration Agreement dated December 6, 1995, among
The Peak Technologies Group, Inc., Dytec, Inc., Gregory
R. Schmidt and Gregory P. Floyd. (filed as Exhibit 4.1
to the Company's Current Report on Form 8-K filed with
the Commission on December 21, 1995, as amended).
*4.7 Registration Agreement, dated as of April 3, 1996, by
and among The Peak Technologies Group, Inc., Luc
Pariente, Paul Antonio Merle, Cesar Zorrilla, Frederic
Migliaccio and Frederic Bouvard.
*4.8 Registration Agreement, dated as of April 4, 1996, by
and among The Peak Technologies Group, Inc., Heinrich
Merki, Willy Steiner and Mathias Waldesbuhl.
4.9 Warrant Number 1, dated as of July 20, 1993, by and
between The Peak Technologies Group, Inc. and Prescott
Arnold. (filed as Exhibit 4.4 to the Company's
Registration Statement on Form S-3, File No. 33-84956).
4.10 Warrant Number 3, dated as of July 20, 1993, by and
between The Peak Technologies Group, Inc. and Raymond
England. (filed as Exhibit 4.6 to the Company's
Registration Statement on Form S-3, File No. 33-84956).
4.11 Warrant Number 4, dated as of July 20, 1993, by and
between The Peak Technologies Group, Inc. and Michael
Ross. (filed as Exhibit 4.7 to the Company's
Registration Statement on Form S-3, File No. 33-84956).
4.12 Warrant Number 5, dated as of July 20, 1993, by and
between The Peak Technologies Group, Inc. and Stephen
Fowler. (filed as Exhibit 4.8 to the Company's
Registration Statement on Form S-3, File No. 33-84956).
4.13 Warrant Number 6, dated as of July 20, 1993, by and
between The Peak Technologies Group, Inc. and Michael
Renaud. (filed as Exhibit 4.9 to the Company's
Registration Statement on Form S-3, File No. 33-84956)
*5.1 Opinion of Milbank, Tweed, Hadley & McCloy.
*23.1 Consent of Ernst & Young LLP, independent auditors.
*23.4 Consent of Milbank, Tweed, Hadley & McCloy (included in
the opinion filed as Exhibit 5.1.)
II- 3
*24.1 Power of Attorney (Set forth on the signature page
hereof).
___________
* Filed herewith.
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions set
forth in Item 15 above, or otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8, or Form
F-3 and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Securities and Exchange Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
II- 4
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II- 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The
Peak Technologies Group, Inc. certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-
3 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
New York, State of New York, on July 25, 1996.
THE PEAK TECHNOLOGIES GROUP, INC.
/s/ Nicholas R.H. Toms
Nicholas R.H. Toms
Chairman, President and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person
whose signature
appears below constitutes and appoints Nicholas R.H. Toms as his or
her true and lawful attorney-in-fact and agent, with full power of
substitution, for him or her and in his or her name, place and stead,
in any and all capacities, to sign any and all amendments and post-
effective amendments to this Registration Statement, and to file the
same with all exhibits thereto, unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact
and agent may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
Signatures Title Date
/s/ NICHOLAS R.H. TOMS Chairman, President, July 25, 1996
NICHOLAS R.H. TOMS Chief Executive
Officer, Director
/s/ JOHN R. COUTTS Director July 25, 1996
JOHN R. COUTTS
/s/ EDWARD A. STEVENS Executive Vice July 25, 1996
EDWARD A. STEVENS President, Chief
Financial Officer
(Principal Financial
and Accounting Officer),
Secretary, Director
/s/ HERBERT W. MARACHE, JR. Director July 25, 1996
HERBERT W. MARACHE, JR.
6
/s/ GREGORY N. THOMAS Director July 25, 1996
GREGORY N. THOMAS
7
EXHIBIT INDEX
Exhibit Page
Number Exhibit Number
2.1 Agreement and Plan of Merger dated July 20, 1993 *
among The Peak Technologies Group, Inc., Airbus
Acquisition Corp., Concord Technologies, Inc.
and the Shareholders named therein (filed as Exhibit
2.1 to the Company's Form 10-Q for the quarter
ended September 30, 1993).
2.2 Agreement and Plan of Merger dated July 12, 1994, *
among Navy Acquisition Corp., Naco Data Systems,
Inc., Vision Data, Inc., Naco Electronics Corporation,
Theodore Leonard and Suzane Lenhard (filed as
Exhibit 2.1 to the Company's Form 10-Q for the
quarter ended September 30, 1994)
2.3 Stock Purchase Agreement dated as of October 25, *
1994, by and among Jeffrey P. Thomas, The Small
Self Administered Pension Scheme known as the
Thomas Dependents Scheme, Fenchurch Nominees Ltd.
and The Peak Technologies Group, Inc. (filed as
Exhibit 2.2 to the Company's Form 10-K for the
fiscal year ended December 31, 1994)
2.4 Agreement and Plan of Merger dated as of January *
6, 1995, among Tiger Acquisition Corp., The Peak
Technologies Group, Inc., Innovative Products
and Peripherals Corporation, Peter Dignan, Brent
Felker, Calvin Fidler, Ralph Hubregsen, James
Lemmer, Timothy Martin, Marcia Rivedal, Steven
Sager, Stacey Strole, Dale Trimble, Dawn Ungerman,
Tracy Van Vleet, Ray Villeneuve and Eric White.
(filed as Exhibit 2.1 to the Company's Current
Report on Form 8-K filed with the Commission on
January 12, 1995).
2.5 Stock Purchase Agreement dated as of September *
25, 1995, by and among Ian Parker, Anders Lundgren
and The Peak Technologies Group, Inc. (filed
as Exhibit 2.5 to the Company's Registration Statement
on Form S-3, File No. 33-80963)
2.6 Agreement and Plan of Merger dated as of September *
30, 1995, among Alpha II Acquisition Corp., The
Peak Technologies Group, Inc., AccuScan, Inc.,
Robert Travis Collins, David R. Wiedman, David
C. Johnson, Eric G. Blumthal, Jeffrey Stuart Collins,
Anthony R. Thompson, Reggie P. Johnson, Alton
C. Smith, III, Walter Max Fuqua, Jeffrey C. Osborne,
Jay A. Steinmetz and Timothy J. Derrickson. (filed
as Exhibit 2.4 to the Company's Registration Statement
on Form S-3, File No. 33- 80963)
2.7 Asset Purchase Agreement dated as of October 20, *
1995 by and among Dytec, Inc., Gregory R. Schmidt,
Gregory P. Floyd, Port Acquisition Corp. and The
Peak Technologies Group, Inc. (filed as Exhibit
2.1 to the Company's Current Report on Form 8-K
filed with the Commission on December 21, 1995,
as amended).
4.1 Registration Agreement dated July 20, 1993, among *
The Peak Technologies Group, Inc., Scott Arnold,
Donald Way, Raymond England,Michael Ross, Stephen
Fowler and Michael Renaud (filed as Exhibit 2.3 to
the Company's Form 10-Q for the quarter ended
September 30, 1993).
4.2 Registration Agreement dated as of October 25, *
1994, among The Peak Technologies Group, Inc.,
Jeffrey P. Thomas, The Small Self Administered
Pension Scheme known as the Thomas Dependents
Scheme and Fenchurch Nominees Ltd. (filed as Exhibit
4.3 to the Company's Form 10-K for the fiscal
year ended December 31, 1994).
4.3 Registration Rights Agreement dated January 6, *
1995, among The Peak Technologies, Inc., Peter
Dignan, Brent Felker, Calvin Fidler, Ralph Hubregsen,
James Lemmer, Timothy Martin, Marcia Rivedal,
Steven Sager, Stacey Strole, Dale Trimble, Dawn
Ungerman, Tracy Van Vleet, Ray Villeneuve and
Eric White. (filed as Exhibit 4.1 to the Company's
Current Report on Form 8-K filed with the Commission
on January 12, 1995).
4.4 Registration Agreement dated September 30, 1995, *
among The Peak Technologies, Inc., Robert Travis
Collins, David R. Wiedman, David C. Johnson, Eric
G. Blumthal, Jeffrey Stuart Collins, Anthony R.
Thompson, Reggie P. Johnson, Alton C. Smith, III,
Walter Max Fuqua, Jeffrey C. Osborne, Jay A. Steinmetz
and Timothy J. Derrickson. (filed as Exhibit
4.4 to the Company's Registration Statement on
Form S-3, File No. 33-80963).
4.5 Registration Agreement dated as of October 16, *
1995, among The Peak Technologies Group, Inc.,
Ian Parker and Anders Lundgren. (filed as Exhibit
4.5 to the Company's Registration Statement on
Form S- 3, File No. 33-80963).
4.6 Registration Agreement dated December 6, 1995, *
among The Peak Technologies Group, Inc., Dytec,
Inc., Gregory R. Schmidt and Gregory P. Floyd.
(filed as Exhibit 4.1 to the Company's Current
Report on Form 8-K filed with the Commission on
December 21, 1995, as amended).
4.7 Registration Agreement dated as of April 3, 1996,
among The Peak Technologies Group, Inc., Luc Pariente
and Paul Antoine Merle, Cesar Zorrilla, Frederic
Migliaccio and Frederic Bouvard.
4.8 Registration Agreement dated as of April 4, 1996
by and among The Peak Technologies Group, Inc.,
Heinrich Merki, Willy Steiner and Mathias Waldesbuhl.
4.9 Warrant Number 1, dated as of July 20, 1993, by *
and between The Peak Technologies Group, Inc.
and Prescott Arnold. (filed as Exhibit 4.4 to
the Company's Registration Statement on Form S-3,
File No. 33-84956).
4.10 Warrant Number 3, dated as of July 20, 1993, by *
and between The Peak Technologies Group, Inc.
and Raymond England. (filed as Exhibit 4.6 to
the Company's Registration Statement on Form S-3,
File No. 33-84956).
4.11 Warrant Number 4, dated as of July 20, 1993, by *
and between The Peak Technologies Group, Inc.
and Michael Ross. (filed as Exhibit 4.7 to the
Company's Registration Statement on Form S-3,
File No. 33-84956).
4.12 Warrant Number 5, dated as of July 20, 1993, by *
and between The Peak Technologies Group, Inc.
and Stephen Fowler. (filed as Exhibit 4.8 to the
Company's Registration Statement on Form S-3,
File No. 33-84956).
4.13 Warrant Number 6, dated as of July 20, 1993, by *
and between The Peak Technologies Group, Inc.
and Michael Renaud. (filed as Exhibit 4.9 to the
Company's Registration Statement on Form S-3,
File No. 33-84956).
5.1 Opinion of Milbank, Tweed, Hadley & McCloy.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.4 Consent of Milbank, Tweed, Hadley & McCloy (included *
in the opinion filed as Exhibit 5.1.)
24.1 Power of Attorney (set forth on the signature page
hereof).
____________
* Incorporated herein by reference
II- 8
Exhibit
Number
ExhibitPage
Number
EXHIBIT 4.7
9
REGISTRATION AGREEMENT
REGISTRATION AGREEMENT dated as of April 3, 1996 among THE
PEAK TECHNOLOGIES GROUP, INC., a Delaware corporation ("Parent"), and
each of the individuals whose names appear on the signature page of
this Agreement (collectively, the "Vendors").
W I T N E S S E T H:
WHEREAS, Parent and the Vendors have entered into a Sale and
Purchase Agreement, dated as of the date hereof (the "Purchase
Agreement"; capitalized terms not defined herein shall have the
meanings ascribed to them in the Purchase Agreement), pursuant to
which Parent has purchased from the Vendors all of the issued and
outstanding share capital of Acquidata ("Acquidata");
WHEREAS, pursuant to the Purchase Agreement and as partial
consideration for the shares of Acquidata purchased thereunder, Parent
has issued to the Vendors an aggregate of 172,727 shares of common
stock, par value $.01 per share, of Parent (the "Registrable Stock");
WHEREAS, as set forth in Clause 8(i) the Purchase Agreement,
Parent has agreed to enter into an agreement to register the
Registrable Stock in connection with the offering and sale of the
Registrable Stock by the Vendors under the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder
(collectively, the "Securities Act");
NOW, THEREFORE, in consideration of the respective covenants
and conditions of the parties set forth herein and in the Purchase
Agreement, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. Registration of Registrable Stock.
(a) Filing of Registration Statement. Parent shall, as
soon as practicable following the date hereof but in no event later
than the date that is 120 days after the date hereof, prepare and file
a registration statement on Form S-3 (the "Registration Statement")
with the Securities and Exchange Commission (the "SEC") under the
Securities Act covering the offering and sale of the Registrable Stock
by the Vendors in "brokers' transactions" or in transactions directly
with a "market maker," as such terms are defined in paragraphs (f) and
(g) of Rule 144 under the Securities Act ("Brokers' Transactions").
(b) Effectiveness; Amendments. Parent will use its
1
reasonable best efforts to cause to be declared as soon as possible
after filing and, except as set forth below, to remain effective under
the Securities Act, the Registration Statement and will prepare and
file with the SEC any amendments or post-effective amendments as may
be necessary to keep the Registration Statement effective under the
Securities Act. Parent will promptly notify the Vendors in writing of
the date on which the Registration Statement is declared effective.
Notwithstanding the foregoing, (i) Parent shall not be required to
keep the Registration Statement effective at any time after (A) all
shares of Registrable Stock have been sold or are no longer
outstanding, and (B) two years following the acquisition from Parent
of the Registrable Stock and (ii) Parent shall not be obligated to
keep the Registration Statement or the prospectus included therein
(the "Prospectus") current during any period (A) of up to 90 days per
calendar year if Parent's chief executive officer advises the Vendors
that he has determined in good faith that valid business reasons make
doing so inadvisable, or (B) when financial statements do not satisfy
the requirements of the last sentence of paragraph (b) of Rule 3-12 of
Regulation S-X (or any successor rule) to the extent, and only to the
extent, that the SEC interprets such sentence as being applicable to
the continued effectiveness of the Registration Statement.
(c) Copies of Documents. During the period that Parent has
agreed to use its reasonable best efforts to cause the Registration
Statement to remain effective (the "Effectiveness Period"), Parent
shall furnish to each Vendor such number of copies of the Registration
Statement, the Prospectus and any amendments and supplements thereto
and any documents incorporated by reference in the Registration
Statement as the Vendor shall reasonably request.
(d) Blue Sky Compliance. Parent shall register or qualify
or cooperate with the Vendors in connection with the notification,
coordination, registration or qualification (or obtain exemption from
such registration or qualification) of the Registrable Stock under
such other securities or blue sky laws of such jurisdictions in the
United States as the Vendors reasonably shall request and do any and
all other acts and things which may be reasonably necessary to enable
the Vendors to consummate the disposition of the Registrable Stock by
them under the Registration Statement in such jurisdictions during the
Effectiveness Period; provided, however, that in no event shall Parent
be required to qualify to do business as a foreign corporation in any
jurisdiction where it is not so qualified, to subject itself to
taxation in any jurisdiction where it has not theretofore done so or
to take any action which would subject it to general service of
process in any such jurisdiction where it is not then so subject.
(e) Notification. During the Effectiveness Period, Parent
shall notify the Vendors promptly, and confirm such notice in writing,
(i) of any request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus or for additional information
relating thereto, (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
2
initiation of any proceedings for that purpose, (iii) of the receipt
by Parent of any notification with respect to the suspension of the
registration, qualification or exemption from registration or
qualification of any of the shares of Registrable Stock covered by the
Registration Statement for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose and (iv) of the
happening of any event which makes any statement made in such
Registration Statement or in the Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or which requires the making of any changes in
such Registration Statement or Prospectus so that such documents will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
(f) Supplements and Post-Effective Amendments. Subject to
the provisions of clause (ii) of the second sentence of Section 1(b)
above, during the Effectiveness Period, upon the occurrence of any
event contemplated by clause (i) or (iv) of paragraph (e) above,
Parent will prepare a supplement or post-effective amendment to the
Registration Statement or a supplement to the Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Stock being sold thereunder, the Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
3
(g) Listing. Parent shall cause all of its common shares
covered by the Registration Statement to be listed on each securities
exchange, if any, on which similar securities issued by Parent are
then listed.
(h) Correspondence with the SEC. Parent shall, upon
request from any Vendor, deliver promptly to such Vendor copies of all
correspondence between the SEC and Parent, its counsel or auditors.
(i) Stock Certificates. Parent will cooperate with the
Vendors to facilitate the timely preparation and delivery of
certificates representing Registrable Stock sold under the
Registration Statement, which certificates shall not have any
restrictive legends.
2. Obligations of Vendors. Following the filing of the
Registration Statement and during any period that the Registration
Statement is effective, each Vendor shall:
(a) not effect any stabilization transactions or engage in
any stabilization activity in connection with Parent common shares in
contravention of Rule 10b-7 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act");
(b) furnish each broker through whom any Vendor offers
Registrable Stock such number of copies of the Prospectus as the
broker may require and otherwise comply with prospectus delivery
requirements under the Securities Act;
(c) report to Parent each month all sales, pledges and
other dispositions of Registrable Stock made by the Vendor;
(d) not (and shall not permit any Affiliated Purchaser (as
defined in Rule 10b-6 under the Exchange Act) to) bid for or purchase
for any account in which any Vendor has a beneficial interest, or
attempt to induce any other person to purchase, any Parent common
shares in contravention of Rule
10b-6 under the Exchange Act;
(e) not offer or agree to pay, directly or indirectly, to
anyone any compensation for soliciting another to purchase, or for
purchasing (other than for the Vendor's own account), any securities
of Parent on a national securities exchange in contravention of Rule
10b-2 under the Exchange Act;
(f) cooperate with Parent as Parent fulfills its
obligations under Section 1(d) hereof;
(g) furnish such information concerning the Vendor as
Parent may from time to time reasonably request;
4
(h) sell Registrable Stock only in Brokers' Transactions;
(i) not sell under the Registration Statement during any
period after Parent has provided notice to the Vendor pursuant to
Section 1(e)(iv) above and until Parent provides to the Vendor notice
that the Registration Statement no longer fails to state a material
fact required to be stated therein, misstates a material fact or omits
to state a material fact required to be stated therein or necessary to
make the statements made not misleading; and
(j) not sell any Registrable Stock during any period
beginning seven days before the anticipated effective date of any
registration statement registering the sale of equity securities for
Parent's account (as Parent advises) and ending 90 days thereafter
without Parent's consent (provided that this restriction shall not
apply with respect to more than one such registration statement during
any calendar year).
3. Expenses. Parent shall be responsible for the payment
of (x) all registration and filing fees relating to registration of
the offering by the Vendors of the Registrable Stock, including,
without limitation, registration and filing fees (A) with respect to
filings required to be made with the SEC or the NASD and (B) with
respect to registrations and filings made under state securities or
blue sky laws and (y) any expenses incurred by Parent in connection
with the preparation of the Registration Statement and the Prospectus.
The Vendors shall be responsible for the payment of fees and
disbursements of counsel engaged by the Vendors in connection with the
preparation of the Registration Statement and the Prospectus and fees
paid to brokers in connection with the sale of any of the Registrable
Stock.
4. Indemnification.
(a) Indemnity by Parent. Parent shall (i) indemnify and
hold harmless each Vendor against any losses, claims, damages or
liabilities ("Losses"), to which each such indemnified party may
become subject, under the Securities Act or otherwise, insofar as such
Losses (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or Prospectus, as amended or
supplemented if Parent has furnished any supplements or amendments
thereto (if used during the period Parent is required to keep the
Registration Statement and Prospectus current), or any document filed
under a state securities or blue sky law (collectively, "Registration
Documents") or insofar as any Losses (or actions in respect thereof)
arise out of or are based upon the omission or alleged omission to
state in any Registration Document, as amended or supplemented if
Parent has furnished any supplements or amendments thereto (if used
during the period Parent is required to keep the Registration
Statement and Prospectus current) a material fact required to be
stated therein or necessary to make the statements made therein (in
5
the case of a prospectus, in the light of the circumstances under
which they were made), not misleading, and (ii) reimburse each
indemnified party for all legal or other expenses reasonably incurred
by it in connection with investigating or defending any Loss,
including any amounts paid in settlement of any litigation, commenced
or threatened, if such settlement is effected with the prior written
consent of Parent; provided, however, that Parent shall not be liable
for any Losses arising out of or based upon any untrue statement or
omission made in any Registration Document in reliance upon and in
conformity with written information furnished to Parent by or on
behalf of any Vendor on the Vendor's understanding that such
information is being provided for use in the preparation of the
Registration Document; and provided, further, that Parent shall not be
liable to a particular indemnified party under the indemnity agreement
in this Section 4(a) with respect to the Prospectus, as amended or
supplemented, to the extent that the Loss arises from the sale of any
shares of Registrable Stock by such indemnified party to the person
asserting Loss and to which there was not sent or given, within the
time required by the Securities Act, a copy of the Prospectus as then
amended or supplemented, if Parent has previously furnished copies
thereof to such indemnified party and such Prospectus as then amended
or supplemented has corrected the misstatement or omission at issue.
(b) Indemnity by Vendors. Each Vendor shall, severally and
not jointly, (i) indemnify and hold harmless Parent, any officer,
director, employee or agent of Parent, and each other person, if any,
who controls Parent within the meaning of Section 15 of the Securities
6
Act against any Losses to which each such indemnified party may become
subject under the Securities Act or otherwise, insofar as such Losses
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in any Registration Document, or arise out of or are based
upon the omission or alleged omission to state in any Registration
Document a material fact required to be stated therein or necessary to
make the statements made therein (in the case of a prospectus, in the
light of the circumstances under which they were made,) not
misleading, and (ii) reimburse each indemnified party for all legal or
other expenses reasonably incurred by it in connection with
investigating or defending any such Losses or action, including any
amounts paid in settlement of any litigation, commenced or threatened,
if such settlement is effected with the prior written consent of such
Vendor; provided, however, that such indemnification or reimbursement
shall be payable only if, and to the extent that, any Losses arise out
of or are based upon an untrue statement or omission made in any
Registration Document in reliance upon and in conformity with written
information furnished to Parent by such Vendor for use in the
preparation thereof.
(c) Procedure for Indemnification. Promptly after receipt
by an indemnified party, under Section 4(a) or 4(b), of notice of the
commencement of any action, the indemnified party shall notify the
indemnifying party in writing of the commencement thereof, if a claim
in respect thereof is to be made against an indemnifying party under
any of these Sections; but the omission of such notice shall not
relieve the indemnifying party from liability which it may have to the
indemnified party under this Section 4, except to the extent that the
indemnifying party is actually prejudiced by such failure to give
notice, and shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than
under this Section 4. In case any action is brought against the
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in, and to the extent that it chooses, to assume the
defense thereof with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party that it so chooses, the indemnifying party shall not
be liable for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof; provided
however, that (i) if the indemnifying party fails to take reasonable
steps necessary to defend diligently the claim within 20 days after
receiving notice from the indemnified party that the indemnified party
believes it has failed to do so, or (ii) if the indemnified party who
is a defendant in any action or proceeding which is also brought
against the indemnifying party reasonably shall have concluded that
there are legal defenses available to the indemnified party which are
not available to the indemnifying party, or (iii) if representation of
both parties by the same counsel is otherwise inappropriate under
applicable standards of professional conduct, the indemnified party
7
shall have the right to assume or continue its own defense as set
forth above. In no event shall the indemnifying party be responsible
for more than one firm of counsel for all indemnified parties.
(d) Non-Exclusive Indemnity. Any indemnity agreements
contained herein shall be in addition to any other rights to
indemnification or contribution which any indemnified party may have
pursuant to law or contract and shall remain operative and in full
force and effect regardless of any investigation made or omitted by or
on behalf of any indemnified party.
(e) Contribution. If for any reason the foregoing
indemnity is unavailable, or is insufficient to hold harmless an
indemnified party, then the indemnifying party shall contribute to
the amount paid or payable by the indemnified party as a result of such
losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the
other (determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission),
or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in such
proportion as is appropriate to reflect not only the relative fault of
the indemnifying party and the indemnified party, but also the
relative benefits received by the indemnifying party on the one hand
(taking into consideration the fact that the provision of the
registration rights hereunder served as an inducement to the Vendors
to enter into the Purchase Agreement) and the indemnified party on the
other, as well as any other relevant equitable considerations. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
5. Miscellaneous.
(a) Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed by, and
construed and interpreted in accordance with, the laws of the State of
New York without giving effect to the choice of law principles
thereof.
(b) Entire Agreement; Amendment; Waiver. This Agreement:
(i) contains the entire agreement among the parties hereto with
respect to the subject matter hereof and is being entered into under
terms of the Purchase Agreement, (ii) supersedes all prior written
agreements and negotiations and oral understandings, if any, with
respect to the registration of the Registrable Stock, and (iii) may
8
not be amended or supplemented except by an instrument or counterparts
thereof in writing signed by Parent and each of the Vendors. No
waiver of any term or provision of this Agreement shall be effective
unless in writing signed by the party to be charged. The waiver by
any party of a breach of any term or provision of this Agreement shall
not be construed as a waiver of any subsequent breach.
(c) Binding Effect. This Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns; provided, however, that no
party hereto may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the prior written
consent of the other parties hereto.
(d) Invalidity of Provision. The invalidity or
unenforceability of any provision of this Agreement in any
jurisdiction shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any
other jurisdiction.
(e) Notices. All notices, requests, consents and other
communications to any party hereunder shall be in writing and shall be
given either by personal service, certified mail, return receipt
requested, overnight courier or telecopy, addressed as follows:
if to Parent, to:
9
The Peak Technologies Group, Inc.
9200 Berger Road
Columbia, Maryland 21046
Attn: Edward A. Stevens
Telecopy: 410-312-7473
with a copy to:
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
Attn: John T. O'Connor
Telecopy: (212) 530-5219
if to the Vendors, to:
Mr. Luc Pariente
45/47 Chemin de la Fontaniere
69350 La Mulatlere
France
Mr. Paul Antoine Merle
11 Quai Augagneur
69003 Lyon
France
Mr. Cesar Zorilla
130 rue du Point du Jour
92200 Boulogne Billancourt
France
Mr. Frederic Migliaccio
92 rue de la Gare
69730 Genay
France
Mr. Frederic Bouvard
28 Cour Artistide Briand
69300 Caluire
France
with a copy to:
Coopers & Lybrand
CLC Guridique et Fiscal
177 Rue Garibaldi
69428 Lyon
France
Attn: Bernard Preuilh
10
Telecopy: 011-331-786-3132
or to such other address as any party may hereafter specify to the
other parties hereto by notice sent in accordance with this Section
5(e). Each such notice, request or other communication shall be
effective when delivered at the address specified in this Section
5(e).
(f) Headings; Execution in Counterparts. The headings and
captions contained herein are for convenience of reference only and
shall not control or affect the meaning or construction of any
provision hereof. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all
of which together shall constitute one and the same instrument.
11
IN WITNESS WHEREOF, this Agreement has been executed by or
on behalf of each of the parties hereto as of the date first above
written.
THE PEAK TECHNOLOGIES GROUP, INC.
By: /s/ Nichols R.H. Toms
Name: Nicholas R.H. Toms
Title: Chairman and CEO
VENDORS:
/s/ Luc Pariente
Luc Pariente
/s/ Paul Antoine Merle
Paul Antoine Merle
/s/ Cesar Zorilla
Cesar Zorilla
/s/ Frederic Migliaccio
Frederic Migliaccio
/s/ Frederic Bouvard
Frederic Bouvard
12
EXHIBIT 4.8
13
REGISTRATION AGREEMENT
REGISTRATION AGREEMENT dated as of April 4, 1996 among THE
PEAK TECHNOLOGIES GROUP, INC., a Delaware corporation ("Parent"), and
each of the individuals whose names appear on the signature page of
this Agreement (collectively, the "Vendors").
W I T N E S S E T H:
WHEREAS, Parent and the Vendors have entered into a Sale and
Purchase Agreement, dated as of the date hereof (the "Purchase
Agreement"; capitalized terms not defined herein shall have the
meanings ascribed to them in the Purchase Agreement), pursuant to
which Parent has purchased from the Vendors all of the issued and
outstanding share capital of Barcode-BC Systeme ("Barcode");
WHEREAS, pursuant to the Purchase Agreement and as partial
consideration for the shares of Barcode purchased thereunder, Parent
has issued to the Vendors an aggregate of 52,000 shares of common
stock, par value $.01 per share, of Parent (the "Registrable Stock");
WHEREAS, in connection with the transactions contemplated by
the Purchase Agreement, Parent has agreed to enter into an agreement
to register the Registrable Stock in connection with the offering and
sale of the Registrable Stock by the Vendors under the Securities Act
of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the "Securities Act");
NOW, THEREFORE, in consideration of the respective covenants
and conditions of the parties set forth herein and in the Purchase
Agreement, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. Registration of Registrable Stock.
(a) Filing of Registration Statement. Parent shall, as
soon as Parent and Vendors may mutually agree but in no event later
than September 30, 1996, prepare and file a registration statement on
Form S-3 or another appropriate form (the "Registration Statement")
with the Securities and Exchange Commission (the "SEC") under the
Securities Act covering the offering and sale of the Registrable Stock
by the Vendors in "brokers' transactions" or in transactions directly
with a "market maker," as such terms are defined in paragraphs (f) and
(g) of Rule 144 under the Securities Act ("Brokers' Transactions").
(b) Effectiveness; Amendments. Parent will use its
reasonable best efforts to cause to be declared as soon as possible
after filing and, except as set forth below, to remain effective under
the Securities Act, the Registration Statement and will prepare and
M&A\35766_3 08/12/96 15:33pm
14
file with the SEC any amendments or post-effective amendments as may
be necessary to keep the Registration Statement effective under the
Securities Act. Parent will promptly notify the Vendors in writing of
the date on which the Registration Statement is declared effective.
Notwithstanding the foregoing, (i) Parent shall not be required to
keep the Registration Statement effective at any time after (A) all
shares of Registrable Stock have been sold or are no longer
outstanding, and (B) two years following the acquisition from Parent
of the Registrable Stock and (ii) Parent shall not be obligated to
keep the Registration Statement or the prospectus included therein
(the "Prospectus") current during any period (A) of up to 90 days per
calendar year if Parent's chief executive officer advises the Vendors
that he has determined in good faith that valid business reasons make
doing so inadvisable, or (B) when financial statements do not satisfy
the requirements of the last sentence of paragraph (b) of Rule 3-12 of
Regulation S-X (or any successor rule) to the extent, and only to the
extent, that the SEC interprets such sentence as being applicable to
the continued effectiveness of the Registration Statement.
(c) Copies of Documents. During the period that Parent has
agreed to use its reasonable best efforts to cause the Registration
Statement to remain effective (the "Effectiveness Period"), Parent
shall furnish to each Vendor such number of copies of the Registration
Statement, the Prospectus and any amendments and supplements thereto
and any documents incorporated by reference in the Registration
Statement as the Vendor shall reasonably request.
(d) Blue Sky Compliance. Parent shall register or qualify
or cooperate with the Vendors in connection with the notification,
coordination, registration or qualification (or obtain exemption from
such registration or qualification) of the Registrable Stock under
such other securities or blue sky laws of such jurisdictions in the
United States as the Vendors reasonably shall request and do any and
all other acts and things which may be reasonably necessary to enable
the Vendors to consummate the disposition of the Registrable Stock by
them under the Registration Statement in such jurisdictions during the
Effectiveness Period; provided, however, that in no event shall Parent
be required to qualify to do business as a foreign corporation in any
jurisdiction where it is not so qualified, to subject itself to
taxation in any jurisdiction where it has not theretofore done so or
to take any action which would subject it to general service of
process in any such jurisdiction where it is not then so subject.
(e) Notification. During the Effectiveness Period, Parent
shall notify the Vendors promptly, and (if requested by any Vendor)
confirm such notice in writing, (i) of any request by the SEC for
amendments or supplements to the Registration Statement or the
Prospectus or for additional information relating thereto, (ii) of the
issuance by the SEC of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for
that purpose, (iii) of the receipt by Parent of any notification with
respect to the suspension of the registration, qualification or
exemption from registration or qualification of any of the shares of
M&A\35766_3 08/12/96 15:33pm
15
Registrable Stock covered by the Registration Statement for sale in
any jurisdiction or the initiation or threatening of any proceeding
for such purpose and (iv) of the happening of any event which makes
any statement made in such Registration Statement or in the Prospectus
or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or which requires the making
of any changes in such Registration Statement or Prospectus so that
such documents will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) Supplements and Post-Effective Amendments. Subject to
the provisions of clause (ii) of the second sentence of Section 1(b)
above, during the Effectiveness Period, upon the occurrence of any
event contemplated by clause (i) or (iv) of paragraph (e) above,
Parent will prepare a supplement or post-effective amendment to the
Registration Statement or a supplement to the Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Stock being sold thereunder, the Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(g) Listing. Parent shall cause all of its common shares
covered by the Registration Statement to be listed on each securities
M&A\35766_3 08/12/96 15:33pm
16
exchange, if any, on which similar securities issued by Parent are
then listed.
(h) Correspondence with the SEC. Parent shall, upon
request from any Vendor, deliver promptly to such Vendor copies of all
correspondence between the SEC and Parent, its counsel or auditors.
(i) Stock Certificates. Parent will cooperate with the
Vendors to facilitate the timely preparation and delivery of
certificates representing Registrable Stock sold under the
Registration Statement, which certificates shall not have any
restrictive legends.
2. Obligations of Vendors. Following the filing of the
Registration Statement and during any period that the Registration
Statement is effective, each Vendor shall:
(a) not effect any stabilization transactions or engage in
any stabilization activity in connection with Parent common shares in
contravention of Rule 10b-7 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act");
(b) furnish each broker through whom any Vendor offers
Registrable Stock such number of copies of the Prospectus as the
broker may require and otherwise comply with prospectus delivery
requirements under the Securities Act;
(c) report to Parent each month all sales, pledges and
other dispositions of Registrable Stock made by the Vendor;
(d) not (and shall not permit any Affiliated Purchaser (as
defined in Rule 10b-6 under the Exchange Act) to) bid for or purchase
for any account in which any Vendor has a beneficial interest, or
attempt to induce any other person to purchase, any Parent common
shares in contravention of Rule
10b-6 under the Exchange Act;
(e) not offer or agree to pay, directly or indirectly, to
anyone any compensation for soliciting another to purchase, or for
purchasing (other than for the Vendor's own account), any securities
of Parent on a national securities exchange in contravention of Rule
10b-2 under the Exchange Act;
(f) cooperate with Parent as Parent fulfills its
obligations under Section 1(d) hereof;
(g) furnish such information concerning the Vendor as
Parent may from time to time reasonably request;
(h) sell Registrable Stock only in Brokers' Transactions;
(i) not sell under the Registration Statement during any
M&A\35766_3 08/12/96 15:33pm
17
period after Parent has provided notice to the Vendor pursuant to
Section 1(e)(iv) above and until Parent provides to the Vendor notice
that the Registration Statement no longer fails to state a material
fact required to be stated therein, misstates a material fact or omits
to state a material fact required to be stated therein or necessary to
make the statements made not misleading; and
(j) not sell any Registrable Stock during any period
beginning seven days before the anticipated effective date of any
registration statement registering the sale of equity securities for
Parent's account (as Parent advises) and ending 90 days thereafter
without Parent's consent (provided that this restriction shall not
apply with respect to more than one such registration statement during
any calendar year).
3. Expenses. Parent shall be responsible for the payment
of (x) all registration and filing fees relating to registration of
the offering by the Vendors of the Registrable Stock, including,
without limitation, registration and filing fees (A) with respect to
filings required to be made with the SEC or the NASD and (B) with
respect to registrations and filings made under state securities or
blue sky laws and (y) any expenses incurred by Parent in connection
with the preparation of the Registration Statement and the Prospectus.
The Vendors shall be responsible for the payment of fees and
disbursements of counsel to the Vendors in connection with the
preparation of the Registration Statement and the Prospectus and fees
paid to brokers in connection with the sale of any of the Registrable
Stock.
4. Indemnification.
(a) Indemnity by Parent. Parent shall (i) indemnify and
hold harmless each Vendor against any losses, claims, damages or
liabilities ("Losses"), to which each such indemnified party may
become subject, under the Securities Act or otherwise, insofar as such
Losses (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or Prospectus, as amended or
supplemented if Parent has furnished any supplements or amendments
thereto (if used during the period Parent is required to keep the
Registration Statement and Prospectus current), or any document filed
under a state securities or blue sky law (collectively, "Registration
Documents") or insofar as any Losses (or actions in respect thereof)
arise out of or are based upon the omission or alleged omission to
state in any Registration Document, as amended or supplemented if
Parent has furnished any supplements or amendments thereto (if used
during the period Parent is required to keep the Registration
Statement and Prospectus current) a material fact required to be
stated therein or necessary to make the statements made therein (in
the case of a prospectus, in the light of the circumstances under
which they were made), not misleading, and (ii) reimburse each
indemnified party for all legal or other expenses reasonably incurred
by it in connection with investigating or defending any Loss,
M&A\35766_3 08/12/96 15:33pm
18
including any amounts paid in settlement of any litigation, commenced
or threatened, if such settlement is effected with the prior written
consent of Parent; provided, however, that Parent shall not be liable
for any Losses arising out of or based upon any untrue statement or
omission made in any Registration Document in reliance upon and in
conformity with written information furnished to Parent by or on
behalf of any Vendor for use in the preparation of the Registration
Document; and provided, further, that Parent shall not be liable to a
particular indemnified party under the indemnity agreement in this
Section 4(a) with respect to the Prospectus, as amended or
supplemented, to the extent that the Loss arises from the sale of any
shares of Registrable Stock by such indemnified party to the person
asserting Loss and to which there was not sent or given, within the
time required by the Securities Act, a copy of the Prospectus as then
amended or supplemented, if Parent has previously furnished copies
thereof to such indemnified party and such Prospectus as then amended
or supplemented has corrected the misstatement or omission at issue.
(b) Indemnity by Vendors. Each Vendor shall, severally and
not jointly, (i) indemnify and hold harmless Parent, any officer,
director, employee or agent of Parent, and each other person, if any,
who controls Parent within the meaning of Section 15 of the Securities
Act against any Losses to which each such indemnified party may become
subject under the Securities Act or otherwise, insofar as such Losses
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in any Registration Document, or arise out of or are based
upon the omission or alleged omission to state in any Registration
Document a material fact required to be stated therein or necessary to
make the statements made therein (in the case of a prospectus, in the
light of the circumstances under which they were made,) not
misleading, and (ii) reimburse each indemnified party for all legal or
other expenses reasonably incurred by it in connection with
investigating or defending any such Losses or action, including any
amounts paid in settlement of any litigation, commenced or threatened,
if such settlement is effected with the prior written consent of such
Vendor; provided, however, that such indemnification or reimbursement
shall be payable only if, and to the extent that, any Losses arise out
of or are based upon an untrue statement or omission made in any
Registration Document in reliance upon and in conformity with written
information furnished to Parent by such Vendor for use in the
preparation thereof.
(c) Procedure for Indemnification. Promptly after receipt
by an indemnified party, under Section 4(a) or 4(b), of notice of the
commencement of any action, the indemnified party shall notify the
indemnifying party in writing of the commencement thereof, if a claim
in respect thereof is to be made against an indemnifying party under
any of these Sections; but the omission of such notice shall not
relieve the indemnifying party from liability which it may have to the
indemnified party under this Section 4, except to the extent that the
indemnifying party is actually prejudiced by such failure to give
notice, and shall not relieve the indemnifying party from any
M&A\35766_3 08/12/96 15:33pm
19
liability which it may have to any indemnified party otherwise than
under this Section 4. In case any action is brought against the
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in, and to the extent that it chooses, to assume the
defense thereof with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party that it so chooses, the indemnifying party shall not
be liable for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof; provided
however, that (i) if the indemnifying party fails to take reasonable
steps necessary to defend diligently the claim within 20 days after
receiving notice from the indemnified party that the indemnified party
believes it has failed to do so, or (ii) if the indemnified party who
is a defendant in any action or proceeding which is also brought
against the indemnifying party reasonably shall have concluded that
there are legal defenses available to the indemnified party which are
not available to the indemnifying party, or (iii) if representation of
both parties by the same counsel is otherwise inappropriate under
applicable standards of professional conduct, the indemnified party
shall have the right to assume or continue its own defense as set
forth above. In no event shall the indemnifying party be responsible
for more than one firm of counsel for all indemnified parties.
(d) Non-Exclusive Indemnity. Any indemnity agreements
contained herein shall be in addition to any other rights to
indemnification or contribution which any indemnified party may have
pursuant to law or contract and shall remain operative and in full
force and effect regardless of any investigation made or omitted by or
on behalf of any indemnified party.
(e) Contribution. If for any reason the foregoing
indemnity is unavailable, or is insufficient to hold harmless an
indemnified party, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such
losses, claims, damages, liabilities or expenses (i) in such
M&A\35766_3 08/12/96 15:33pm
20
proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the
other (determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission),
or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in such
proportion as is appropriate to reflect not only the relative fault of
the indemnifying party and the indemnified party, but also the
relative benefits received by the indemnifying party on the one hand
(taking into consideration the fact that the provision of the
registration rights hereunder served as an inducement to the Vendors
to enter into the Purchase Agreement) and the indemnified party on the
other, as well as any other relevant equitable considerations. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
5. Vendor's Put Rights.
Parent shall, upon 10 days prior written notice from a
Vendor (a "Put Notice"), which Put Notice must be given within 30 days
of the applicable Put Date (as defined below), repurchase shares of
Registrable Stock from such Vendor on the date specified in the Put
Notice for $24 per share of Registrable Stock to be so repurchased.
The Put Notice shall specify the number of shares of Registrable Stock
(which shall not be less than 5,000 shares) to be repurchased by
Parent thereunder. Notwithstanding the foregoing, Parent shall not be
obligated to repurchase any shares of Registrable Stock under this
Section 5 if the Put Notice is not delivered to Parent within 30 days
following the Put Date. "Put Date" shall mean (a) April 4, 1997,
unless the Registration Statement has been declared effective by the
SEC on or before such date, or (b) the first anniversary date of the
effective date of the Registration Statement, if the common stock of
Parent has not traded at or above $24 per share (based upon the
closing price per share as quoted in the Wall Street Journal) for a
period of any 30 consecutive trading days during the period from the
effective date of the Registration Statement to the first anniversary
of the effective date of the Registration Statement.
6. Miscellaneous.
(a) Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed by, and
construed and interpreted in accordance with, the laws of the State of
New York without giving effect to the choice of law principles
thereof.
M&A\35766_3 08/12/96 15:33pm
21
(b) Entire Agreement; Amendment; Waiver. This Agreement:
(i) contains the entire agreement among the parties hereto with
respect to the subject matter hereof, (ii) supersedes all prior
written agreements and negotiations and oral understandings, if any,
with respect thereto, and (iii) may not be amended or supplemented
except by an instrument or counterparts thereof in writing signed by
Parent and each of the Vendors. No waiver of any term or provision of
this Agreement shall be effective unless in writing signed by the
party to be charged. The waiver by any party of a breach of any term
or provision of this Agreement shall not be construed as a waiver of
any subsequent breach.
(c) Binding Effect. This Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns; provided, however, that no
party hereto may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the prior written
consent of the other parties hereto.
(d) Invalidity of Provision. The invalidity or
unenforceability of any provision of this Agreement in any
jurisdiction shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any
other jurisdiction.
(e) Notices. All notices, requests, consents and other
communications to any party hereunder shall be in writing and shall be
given either by personal service, certified mail, return receipt
requested, overnight courier or telecopy, addressed as follows:
if to Parent, to:
The Peak Technologies Group, Inc.
9200 Berger Road
Columbia, Maryland 21046
Attn: Edward A. Stevens
Telecopy: 410-312-7473
with a copy to:
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
Attn: John T. O'Connor
Telecopy: (212) 530-5219
if to the Vendors, to:
Heinrich G. Merki
Dorfstrasse 44,
M&A\35766_3 08/12/96 15:33pm
22
8306 Bruttisellen
Switzerland
Willy Steiner
Untere Banhofstrasse 2,
8340 Hinwil
Switzerland
Mathias Waldesbuhl
Rebhaldenstrasse 39,
8173 Riedt
Switzerland
with a copy to:
Baker & McKenzie
Zllikerstrasse 225
Postfach 57
8034 Zurich
Switzerland
Attn: Dr. Urs Schenker
Telecopy: 011-41-1-384-1284
or to such other address as any party may hereafter specify to the
other parties hereto by notice sent in accordance with this Section
M&A\35766_3 08/12/96 15:33pm
23
6(e). Each such notice, request or other communication shall be
effective when delivered at the address specified in this Section
6(e).
(f) Headings; Execution in Counterparts. The headings and
captions contained herein are for convenience of reference only and
shall not control or affect the meaning or construction of any
provision hereof. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all
of which together shall constitute one and the same instrument.
M&A\35766_3 08/12/96 15:33pm
24
IN WITNESS WHEREOF, this Agreement has been executed by or
on behalf of each of the parties hereto as of the date first above
written.
THE PEAK TECHNOLOGIES GROUP, INC.
By: /s/ Nicholas R.H. Toms
Name: Nicholas R.H. Toms
Title: Chairman and CEO
VENDORS:
/s/ Heinrich G. Merki
Heinrich G. Merki
/s/ Willy Steiner
Willy Steiner
/s/ Mathias Waldesbuhl
Mathias Waldesbuhl
M&A\35766_3 08/12/96 15:33pm
25
EXHIBIT 5.1
26
EXHIBIT 5.1
July 25, 1996
The Peak Technologies Group, Inc.
600 Madison Avenue
New York, NY 10022
Re: The Peak Technologies Group, Inc.
Registration Statement on Form S-3
Filed on July 26, 1996
Ladies and Gentlemen:
We have acted as counsel to The Peak Technologies Group,
Inc., a Delaware corporation (the "Corporation"), in connection with the
preparation and filing of the Corporation's Registration Statement on
Form S-3 (the "Registration Statement") filed on July 26, 1996 with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, for the registration of the offer for sale of up to 224,727 shares
(the "Shares") of the Corporation's Common Stock, $.01 par value
(the "Common Stock") by the Selling Stockholders named in the
Registration Statement.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and officers and representatives of the Corporation and other
documents as we have deemed necessary or advisable for the opinion
hereinafter expressed.
Based upon the foregoing and having regard to legal considerations we deem
relevant, we are of the opinion that the Shares issued to the Selling
Stockholders have been duly authorized and are validly issued, fully paid
and nonassessable.
The foregoing opinion is limited to matters involving the Federal laws
of the United States, the General Corporation Law of the State of
Delaware and the laws of the State of New York, and we do not express
any opinion as to the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. We also consent to the reference to us under the
caption "Legal Opinions" in the Prospectus contained in the
Registration Statement.
Very truly yours,
JTO/TMD
M&A\45365_1 08/12/96 15:35pm
27
EXHIBIT 23.1
28
Exhibit 23.1
We consent to the incorporation by reference of our reports
dated February 19, 1996, in the Registration Statement (Form S-3)
dated July 26, 1996 and related Prospectus of The Peak Technologies
Group, Inc. for the registration of 224,727 shares of its common
stock, with respect to the consolidated financial statements and
schedule of The Peak Technologies Group, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1995, filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
MetroPark, New Jersey
July 22, 1996
29
